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Myers v. Loomis Armored US, LLC

United States District Court, W.D. North Carolina, Charlotte Division

July 25, 2019

SHAKEERA MYERS, on behalf of herself and all others similarly situated, Plaintiff,
v.
LOOMIS ARMORED US, LLC, Defendant.

          ORDER

          FRANK D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court on Plaintiff's Motion for Conditional Certification Pursuant to the Fair Labor Standards Act, Court-Authorized Notice to be Issued under 29 U.S.C. § 216(B), Class Certification under Fed.R.Civ.P. 23, and Appointment of Class Counsel Under Fed.R.Civ.P. 23(G). (Doc. No. 26). Defendant responded to the motion, (Doc. No. 31), Plaintiff replied, (Doc. No. 33), and this motion is now ripe for review.

         I. BACKGROUND

         Plaintiff Shakeera Myers (“Myers”) brings suit against Defendant Loomis Armored US, LLC (“Loomis”) for alleged violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b), and the North Carolina Wage and Hour Act (“NCWHA”), N.C. Gen. Stat. §§ 95-25.6, 95-25.8.[1] (Doc. No. 1). According to Myers' Complaint, Loomis is a cash management specialist business offering uniformed and armored guard services. (Doc. No. 1, p. 6). Myers and putative plaintiffs worked as Armored Service Technicians (“ASTs”), an all-encompassing title for guards, drivers, messengers, and/or similar positions. Id. at 6-7. As ASTs, they were responsible for transporting cash and valuables in armored vehicles, in addition to replenishing ATM machines. Id. at 6. Myers and putative plaintiffs contend that Loomis maintained a company policy wherein ASTs were paid “straight time” for all hours worked on weekdays, even when their hours worked on weekdays were in excess of forty hours per week. (Doc. Nos. 1, p. 2; 27-4, p. 4; 27-5, p. 4; 27-6, p. 4; 27-7, p. 4; 27-8, p. 4; 27-9, p. 4). For hours worked in excess of forty hours per week worked on weekend, Myers and putative plaintiffs allege that they were at times paid only one-half times their regular rate. (Doc. Nos. 1, p. 2; 27-4, p. 4; 27-5, p. 4; 27-6, p. 4; 27-7, p. 4; 27- 8, p. 4; 27-9, p. 4). Myers and putative plaintiffs aver that they can demonstrate that they “regularly performed a significant portion of their work, i.e. entire shifts, in vehicles weighing less than 10, 000 pounds” such that the small vehicle exception overrides any exemptions to the overtime requirements under the FLSA. (Doc. No. 33, p. 6) (emphasis in original); see also (Doc. Nos. 27-4, p. 3; 27-5, p. 3; 27-6, p. 3; 27-7, p. 3; 27-8, p. 3; 27-9, p. 3). Finally, Myers and putative plaintiffs allege Loomis made deductions from their wages for equipment without proper written authorization and/or they have personal knowledge of other ASTs who have been victims of this policy. (Doc. Nos. 27-4, pp. 5-6; 27-5, pp. 4-5; 27-6, pp. 4-5; 27-7, pp. 4-5; 27-8, pp. 4-5; 27-9, pp. 4-5). Myers seeks (1) unpaid overtime compensation for hours worked in excess of forty hours per week pursuant to the FLSA; and (2) all earned, accrued, and unpaid (wages) promised straight-time, overtime, and unauthorized deductions pursuant to the NCWHA. See (Doc. No. 28, p. 9).

         II. CONDITIONAL CERTIFICATION UNDER 29 U.S.C. § 216(b)

         Myers seeks conditional certification and authorization to send court-supervised notice under the FLSA, 29 U.S.C. § 216(b), for the following class:

[A]ll individuals who were, are, or will be employed by Defendant in North Carolina as armored service technicians, including armed drivers, armed messengers, and armed guards, or in similar positions at any time within the three (3) years prior to the filing of the Complaint, through the present, and who were not compensated at the appropriate one and one-half (1.5) times their regular hourly rate for all hours worked in excess of forty (40) per week.

(Doc. No. 28, p. 9). Myers alleges that Loomis violated the FLSA by misclassifying Myers and other current and former Armored Service Technicians (“ASTs”) as exempt, depriving them of overtime premium pay to which they are entitled under the FLSA. (Doc. No. 1, pp. 8-9). Myers argues that she and the alleged class members are similarly situated in that they were victims of a single decision, policy, practice, or plan that resulted in unpaid regular and overtime wages in violation of the FLSA. Id. at 9-10. Loomis objects, arguing that court-approved notice is not appropriate because Myers has not shown she is “similarly situated” to other ASTs employed at Loomis North Carolina branches. See (Doc. No. 31, p. 2).

         The FLSA “embodies a federal legislative scheme to protect covered employees from prohibited employer conduct.” Houston v. URS Corp., 591 F.Supp.2d 827, 831 (E.D. Va. 2008). Pursuant to section 216(b), “[a]n action . . . may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and on behalf of [herself] or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). “[U]nlike in a class action filed pursuant to Federal Rule of Civil Procedure 23 or a comparable state court rule, in a collective action under the FLSA, a named plaintiff represents only [herself] until a similarly-situated employee opts in as a ‘party plaintiff' by giving ‘his [or her] consent in writing to become such a party and such consent is filed in the court in which such action is brought.'” Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 758 (4th Cir. 2011) (quoting 29 U.S.C. § 216(b)). Under the FLSA, a district court may exercise its discretion and, in appropriate cases, certify an action as a “collective action” and facilitate notice of the suit to a putative class of potential plaintiffs. Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989); Quinteros v. Sparkle Cleaning, Inc., 532 F.Supp.2d 762, 771 (D. Md. 2008).

         Certification of a collective action is a two-stage process. Pelczynski v. Orange Lake Country Club, Inc., 284 F.R.D. 364, 367 (D.S.C. 2012). “First, a plaintiff seeks conditional certification by the district court in order to provide notice to similarly situated plaintiffs” that they can “opt-in” to the collective action. Id. at 367-68. To proceed as a collective action at this stage, plaintiffs need only make “a modest factual showing” that they were victims of a common policy or practice that violated the FLSA. Essame v. SSC Laurel Operating Co., 847 F.Supp.2d 821, 825 (D. Md. 2012). At the notice stage, the court “does not resolve factual disputes, decide substantive issues on the merits, or make credibility determinations.” Solais v. Vesuvio's II Pizza & Grill, Inc., No. 1:15-cv-227, 2016 WL 1057038, at *6 (M.D. N.C. Mar. 14, 2016) (citation omitted). A plaintiff may rely on “affidavits or other means, ” such as declarations and deposition testimony, to show that a class of “similarly situated” plaintiffs exist. Williams v. Long, 585 F.Supp.2d 679, 684-85 (D. Md. 2008) (concluding that declarations would alone suffice to meet the initial threshold for conditional certification a of collective action). This showing must consist of more than “vague allegations” with “meager factual support, ” but it need not enable the court to reach a conclusive determination whether a class of similarly situated plaintiffs exists. Mancía v. Mayflower Textile Servs. Co., No. CCB-08-273, 2008 WL 4735344, at *2 (D. Md. Oct.14, 2008) (citing D'Anna v. M/A-COM, Inc., 903 F.Supp. 889, 893 (D. Md. 1995)).

         Second, after the court has conditionally certified the class, potential class members have been identified and notified, and discovery has been completed, a defendant may then move to decertify the collective action, pointing to a more developed record to support its contention that the plaintiffs are not similarly situated to the extent that a collective action would be the appropriate vehicle for relief. Pelczynski, 284 F.R.D. at 368 (citation omitted). At this “decertification stage, ” the court applies a heightened fact-specific standard to the “similarly situated” analysis. Steinberg v. TQ Logistics, Inc., No. 0:10-cv-2507-JFA, 2011 WL 1335191, at *2 (D.S.C. Apr. 7, 2011).

         Here, the parties disagree as to whether Myers need only make a “minimal” showing, based on pleadings, affidavits, and declarations, that the members of the putative collective action are similarly situated for the purposes of certification, or if something more is required at this initial stage. Loomis, citing Blaney v. Charlotte-Mecklenburg Hosp. Auth., No. 3:10-cv-592-FDW-DSC, 2011 WL 4351631 (W.D. N.C. Sept. 16, 2011)[2], argues that the Court should apply an “intermediate” approach, which requires a more stringent showing to determine whether Myers has demonstrated that she and the potential opt-ins are similarly situated. (Doc. No. 31, pp. 7-8). Myers, however, contends the lenient standard of review is appropriate. (Doc. No. 33, p. 6 n. 2).

         In the instant case, the Court finds that the lenient standard is appropriate. First, although a couple courts in this circuit have applied the intermediate standard, see Blaney, 2011 WL 4351631, at *3; MacGregor v. Farmers Ins. Exch., No. 2:10-cv-03088, 2012 WL 2974679, at *3 (D.S.C. July 20, 2012), the majority of the courts in the Fourth Circuit adhere to the two-stage inquiry contemplated by § 216(b), see Long v. CPI Sec. Sys., Inc., 292 F.R.D. 296, 299 (W.D. N.C. 2013) (citing cases from the Fourth Circuit where the two-stage analysis was used). Second, although the parties have completed some discovery in this case, including taking several depositions, it appears to the court that, at the time this motion was filed, significant additional discovery remains.[3] See Curtis v. Time Warner Entm't.-Advance Newhouse P'ship, No. 3:12- CV-2370-JFA, 2013 WL 1874848, at *3 (D.S.C. May 3, 2013) (citing McKnight v. D. Houston, Inc., 756 F.Supp.2d 794, 802 (S.D. Tex. 2010)) (declining defendant's request to apply the intermediate standard even where parties completed some discovery). Where substantial discovery remains, courts typically apply the more lenient standard applicable at the first step. See McKnight. 756 F.Supp.2d at 802-03 (noting that the more onerous standard is only appropriate “after discovery is largely complete and the matter is ready for trial”). Accordingly, the Court will apply the widely accepted lenient standard to Myers' motion for conditional certification.

         Here, the Court finds Myers has presented sufficient evidence to overcome the “fairly lenient” standard-that requires only “minimal evidence”-establishing that Myers and putative plaintiffs were similarly situated under 29 U.S.C. § 216(b). To support her contention that putative opt-in plaintiffs are similarly situated, Myers has presented six declarations that she and her putative class all (1) had similar duties as ASTs; (2) were hourly workers subject to the same timekeeping policies and practices; (3) were subject to a company-wide policy where ASTs were assigned to routes and were required to use vehicles of various sizes depending on what was available at the time; (4) were paid under a common policy implemented by Loomis; and (5) regularly worked more than fifty hours each week but were not compensated for weeks when they rode in small vehicles weighing less than 10, 000 pounds. See (Doc. Nos. 28-4; 28-5; 28-6; 28- 7; 28-8; 28-9). Myers also produced paystubs as evidence that Loomis failed to properly pay ASTs overtime compensation for all weeks. (Doc. No. 28-2). Finally, Myers provided Loomis' Fleet Inventory List that identifies both overweight and underweight vehicles used by ASTs in its North Carolina branches. (Doc. No. 28-16). Thus, the Court finds that the limited factual showing is sufficient to satisfy the lenient standard at this stage.

         Loomis opposes conditional certification based on its intent to assert an affirmative defense under the motor carrier exemption. (Doc. No. 31, pp. 10-12). Specifically, Loomis contends that plaintiffs' claims and Loomis' potential defense will require highly individualized inquiries and thus the claims are inappropriate for class certification. Id. at 15. The Court, however, finds that this argument is premature and more appropriately considered during the second stage of the collective action certification when the evidentiary record and Loomis' defenses have been fully developed. See Holmes v. Charleston Ret. Inv'rs, LLC, 115 F.Supp.3d 653, 659 (D.S.C. 2014) (rejecting a similar argument made by the defendant). The fact that plaintiffs might be exempt from the FLSA due to the Motor Carrier Act (“MCA”), and that the application of the MCA exemption might require an individualized inquiry, does not preclude conditional certification. See Rosinbaum v. Flowers Foods, Inc., 238 F.Supp.3d 738, 746-47 (E.D. N.C. 2017) (“[W]here defendants oppose conditional certification on the ground that some defenses may require a degree of individualized inquiry, defendants' opposition is unavailing.”); see also Schilling v. Schmidt Baking Co., No. TDC-16-2498, 2018 WL 3520432, at *6 (D. Md. ...


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